Rajasthan High Court - Jodhpur

Sadeek Khan @ Pahalwan And Ors vs State on 13 July, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 302/1993

Sadeek Khan @ Pahalwan And Ors.

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. H.S.S. Kharlia, Sr. Adv.

Assisted by Dr. R.D.S.S. Kharlia and Ms. Kinjal Purohit For Respondent(s) : Mr. Abhishek Purohit, AGA

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 05/07/2022 Pronounced on 13/07/2022

1. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, humbly and respectfully prayed that this appeal of the appellant my kindly be allowed and the sentence and conviction passed against the appellants by the learned Additional District and Session's Judge, Raisinghnagar in Session's case No. 62/92 dated 4.8.93 (sic.) may kindly be set aside."

2. This Criminal Appeal has been preferred against the

impugned judgment, dated 04.08.1993 passed by the learned

Additional District & Sessions Judge, Raisinghnagar in Sessions

Case No. 62/1992 whereby the learned Court below, convicted

accused-appellant No. 3, Shan Mohammed for the offence under

Section 304 Part II I.P.C. and awarded him a sentence of 4 years

R.I. along with a fine of Rs. 200/-, in default of payment of which,

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he was to undergo further six months R.I., and convicted

Appellants No. 1 and 2, Sadeek Khan and Mohammedyar

respectively, for the offences under Sections 325/34 and 323/34

I.P.C. and awarded them a sentence of 1 year R.I. along with a

fine of Rs. 200/- and 6 months R.I. with a fine of Rs. 200/-

respectively to each of them, in default of payment of fine, each of

them were to undergo further six months R.I.

3. Mr. H.S.S. Kharlia, learned Senior Counsel assisted by Dr.

R.D.S.S. Kharlia and Ms. Kinjal Purohit appearing on behalf of the

appellants herein, at the outset, submitted that Appellant No. 1,

Sadeek Khan has passed away, and the appeal, with respect to

him has abated.

3.1 Learned Senior Counsel further submitted that Appellant No.

2, Mohammadyar, was arrested on 08.07.1992 and was granted

bail on 21.09.1992, and that during the appeal, his sentence was

suspended on 26.08.1993. And therefore, the total custody period

undergone by the said Appellant No. 2 is of 2 months 13 days.

3.2 Learned Senior Counsel also submitted that Appellant No. 3,

Shan Mohammed was arrested on 08.07.1992 and was in custody

during trial, and did not apply for bail. And that, in appeal, his

sentence was suspended on 27.09.1993. And therefore, the total

custody period undergone by Appellant No. 3 is of 1 year 2

months and 19 days.

3.3 Learned Senior Counsel further submitted that the brief facts

of the case are that on 29.06.1992, at Sardargad Kendrakrishi

Farms, an incident took place while cattle were grazing, and as a

consequence of which a person employed at the farm, Sughai,

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succumbed to his head injuries and passed away and Manohar

Prasad Singh's right hand's pinky finger was fractured.

3.4 Learned Senior Counsel also submitted that the learned

Court below has not taken into due consideration the overall facts

and circumstances of the case and the evidences placed on record

before it, and has erred in passed the impugned judgment.

3.5 Learned Senior Counsel further submitted that on the alleged

date of occurrence, the appellants and others were grazing their

cattle in the farm, after depositing the requisite fee for the same,

and that P.W. 11 Tengri Lal has admitted the same in his

statement before the Court, that Ex. D/1, the permit, was

prepared by him after deposition of the fees for grazing their

cattle in Murabba No. 108/376 for a period of 15 days from

28.06.1992 to 12.07.1992. And that the same was deposited by

them on 27.06.1992, for which the permit was prepared on the

same day itself. And that, the same has been corroborated by the

testimony of P.W. 9 - Balveer Singh, the Security Officer in his

cross-examination.

3.6 Learned Senior Counsel further submitted that the P.W. 9

Balveer Singh has admitted that he was not an eye-witness to the

incident in question and that he was not knowing the names of the

accused persons but he lodged the F.I.R. (Ex. P/21) under the

pressure of the union leaders of the chowkidaars and labourers.

And that, it is therefore clear that names of the accused, were not

known by P.W. 9 nor by the union leader, Gopal (P.W. 5) at the

time of lodging of the F.I.R., and that it may therefore be safely

presumed that the said F.I.R. is not a true and relevant document.

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And therefore, the very basis and foundation upon which the

prosecution has built its case against the accused herein is

unsustainable.

3.7 Learned Senior Counsel also submitted that the F.I.R. is said

to have been lodged in the presence of the allegedly injured

person i.e. the union leader Gopal i.e. P.W.-5, however he was

neither examined by the police under Section 161 Cr.P.C on the

same day nor was he medically examined on that day. And that

although the F.I.R. was in fact lodged on 30.06.1992, after the

investigation process was complete, thus, calling into question the

entire case of the prosecution.

3.8 Learned Senior Counsel further submitted that although it

was averred that multiple persons were injured as a result of the

incident in question, neither of them were medical examined to

corroborate the said allegation on 29.06.1992. And although, it

was averred that the injured Sughai and M.P. Singh were given

first aid at the government hospital, Jetsar, no records of the same

have been produced in evidence by the prosecution. And that

neither was the deceased Sughai medically examined or even X-

ray upto his death, even after allegations of him suffering grievous

injuries, were made.

3.9 Learned Senior Counsel also submitted that while in the

F.I.R. it was stated that the death of Sughai was caused by

Appellant No. 3 and one Mohammed s/o Shri Haku, during trial

almost all the witnesses deposed that the injuries were Appellant

no. 3 and one Mumtaz. And that, when the F.I.R. has been

disbelieved by the learned Trial Court, then the only material

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available with the Court are the statements of the witnesses

recorded during the course of the trial. And while two persons

were named by the witnesses, the learned Court below has

incorrectly acquitted only Mumtaz while convicting Appellant No.

3, and since both persons are on an equal footing, Appellant No. 3

must also be acquitted.

3.10 Learned Senior Counsel further submitted that since

the appellants had deposited fees to graze their cattle, as

aforementioned, therefore, they were entitled to protect their

cattle which were wrongly being taken away, and that any such

action which may have been done by them to protect their

property / chattel, should be protected under their right to self

defence, of their property.

4. Learned Senior Counsel for the appellants also placed

reliance on the judgment rendered by the Hon'ble Apex Court in

Sudharshan and Anr. Vs. State of Maharashtra (2014) 12

SCC 312 wherein the following was held:-

"We, thus, feel that it was a glaring omission on the part of the prosecution which lends credence to the plea of the defence about ante-timing the FIR. It gets strengthened on finding more glaring and intriguing events taking place thereafter, which are described hereinafter.

Mr. Dilip, who was attached to the Chandrapur Police Station, sitting as PSO on that day, was produced as PW-21. He stated in his deposition that he was informed by PSI Sayyad about the incident and, accordingly, he recorded the report as per the say of the complainant, which he proved as Exhibit-114. After recording the statement, he reached the spot of incident and by that time PSO of the Ballarshah Police Station had also reached the spot.

Curiously, this witness did not even disclose the names of the

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accused persons to P.I. Kshirsagar, who had come from Ballarshah Police Station. This is what he said in the cross-examination:

2)...I had not disclosed names of accused persons to P.I. Kshirsagar on the spot. I can not assign any reason as to why I had not disclosed the names of accused to P.I. Kshirsagar though I was knowing the names of accused. It is not true to say that at that time I was not knowing the names of the assailants and therefore I have not given that information to P.I. Kshirsagar. It is not true to say that the portion in front of entry No. 38 and 39 of the station diary was kept blank as per the direction of Superintendent of Police. It is not true to say that thereafter on the next day I have filled these entries. It is not true to say that thereafter I have prepared forged report. It is not true to say that I have not sent the report and printed F.I.R. to P.S. Ballarpur on the day of incident at about 4.45 p.m. on the day of incident....

This is even accepted by the Investigating Officer Mr. Jiwan from Police Station Ballarshah, who had reached the spot, in the following words:

19...P.I. Tidke had been to the spot of incident when I was drawing inquest panchanama. Jiwan Mahadole and Bahadur Hazare had been to the spot before arrival of P.I. Tidke. I can not say as to whether Manoj Ughade had also reached the spot or not. It did not happen that Manoj Ughade had identified one dead body. It is true to say that P.I. Tidke had not disclosed me the names of the assailants. It is true to say that the witnesses Jiwan Mahadole and Bahadur Hazare had not disclosed me the names of assailants on the spot. It is not true to say the Manoj Ughade was also present on the spot but he had not disclosed me the names of the assailants. Article C and D about the report to be forwarded to the Civil Surgeon with dead bodies sent for post-mortem examination now shown to me are bear my signature. Their contents are correct. They are Exhs. 278 and 279. I did not received the case diary on that day up to 8.00 p.m. I was on the spot up to about 9.30 p.m. Thereafter I visited Chandrapur City P.S. It is true to say that on the day of incident I was not knowing the names of assailants till 8.00 p.m. and therefore in the document prepared by the time I have mentioned the names of assailants as unknown persons.

It, thus, becomes apparent from the aforesaid that though as per the FIR, names of the assailants, i.e. the Appellants herein, were stated to PW-12 or PW-21, but PW-21 did not disclose these names to PW-22, who is the Investigating Officer. In the inquest report prepared by PW-22, no names are mentioned even when the complainant and two or three friends of his were present on the spot. All these factors throw suspicion about the recording of

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the FIR at the time stipulated in the FIR. There are circumstances galore which indicate that the FIR was ante-timed and the names of these two Appellants were incorporated later but showing them to be at the time when the statement was made by the complainant on the basis of which the FIR was registered.

At this juncture, we would like to point out that there were a number of persons, almost 100. The Police did not make any effort to join independent persons in the investigation. The entry to Junona, which is a jungle area, is by tickets. However, no efforts were made to take the connecting evidence of this nature. 22. In the aforesaid scenario, we find that the present case is fully covered by the judgment of this Court in Meharaj Singh v. State of Uttar Pradesh (1994) 5 SCC 188, where the importance of recording of FIR and the requirement of dispatching the copy thereof to the Magistrate within 24 hours with the consequences fraught with danger was highlighted in the following manner: 12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the

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inquest report. Even though the inquest report, prepared Under Section 174 Code of Criminal Procedure, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8. Neither the trial court nor the High Court has appreciated the aforesaid circumstances which go to the root of the matter and raise sufficient doubt about the involvements of the Appellants in the present case.

We are, therefore, of the opinion that the Appellants are entitled to the benefit of doubt and the case against them is not proved beyond reasonable doubt so as to uphold their conviction into a serious charge of murder Under Section 302 read with Section 34 of Indian Penal Code.

The appeal is, accordingly, allowed and the conviction of the Appellants under the aforesaid provisions is set aside. The Appellants, who are in custody, shall be released forthwith, if not required in any other case.

5. Learned counsel for the appellants however, makes a

limited submission that without making any interference on the

merits/conviction, the sentence awarded to the present

appellants may be substituted with the period of sentence

already undergone by him.

6. On the other hand, learned Public Prosecutor opposed the

submissions made on behalf of the appellants and submitted

that the learned Court below has rightly passed the impugned

judgment after taking into due consideration the overall facts

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and circumstances of the present case and the evidences palced

on record before it.

6.1 Learned Public Prosecutor further submitted that the

learned Court below has rightly gave Mumtaz the benefit of the

doubt and acquitted him from the offences against which he was

charged, finding that even though Mumtaz was named by some

of the witnesses, owing to a lack of Mumtaz's name being

mentioned in the F.I.R. coupled with the fact that he was not

identified by the prosecution. And that the same cannot be said

about the other accused, namely Mohammadeyar and Shan

Mohammad who have been clearly named and identified, and

whose role in the incident in question has been proven beyond

reasonable doubt.

6.2 Furthermore, as per learned Public Prosecutor, the learned

Court below has not convicted the appellant herein under

Section 302 but under Section 304 II I.P.C. considering the

overall facts and circumstances of the present case. And that,

the delay in filing the F.I.R. has been sufficiently explained to

the satisfaction of the learned Court below.

7. Heard learned counsel for the parties as well as perused

the record of the case, alongwith the judgment cited at the Bar.

8. This Court observes that the learned Court below has

(rightly) made the following observations:-

8.1 The witness Balvir Singh, in his testimony, stated that he

signed and submitted before the police, the report as given to

him by the union leader. And that, it was the testimony of

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witness Dasaram, security official at the Kendriya Farm, that

when he reached the scene, he spotted some persons fleeing

the scene, but could not make out who they were.

8.2 The testimonies of Manohar Prasad Singh, Gopal Ram,

Bakul, Rahmattulla and Tulsi show that each of them named the

accused persons as Sadeek Khan, Shan Mohammed and

Mohammadyaar and Mumtaz as the accused. While witness,

Ramsnehi turned hostile. Therefore, a large number of

witnesses named the above 4 persons as the accused in the

case.

8.3 However, Mumtaz was not named in the F.I.R. whereas the

other 3 persons, as above named. And, Balvir Singh stated that

Manohar Prasad Singh, at first, only named Shan Mohammed

and Sadeek Khan as the accused persons. Furthermore, Mumtaz

was not identified by the prosecution. And therefore, the Court

saw it fit to extend the benefit of doubt to Mumtaz.

8.3.1 Whereas Shan Mohammed's role in the incident in

question was clear and corroborated through testimonies of

witnesses, that he was responsible for dealing the blow to the

deceased, Sughai's head. And that, Sadeek Khan and

Mohammedyaar were originally named by Manohar Prasad

Singh.

8.4 It was the contention of the investigating officer that when

he reached the spot to investigate, he was unable to locate any

witness at the scene and was therefore left without making any

inquiry. And that, from this it is evident that as on 29.06.1992,

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the only accused that were known to the police authorities, were

in fact, Sadeek Khan and Shan Mohammed.

8.5 Furthermore, witnesses Rahmatulla and Teju have deposed

that when the concerned police authorities arrived at the spot of

the incident in question, they questioned them at which point

the stated the names of the accused, and that their signatures

on the same were also taken, however, the prosecution has not

placed anything regarding the same on the record.

9. The learned Court below has therefore rightly held that

while the accused herein may have attempted to protect their

cattle, it cannot go to the extent that they were unaware that

the gravity of the injuries inflicted would not be fatal, and that

Sughai and Manohar Prasad Singh, both believed to doing their

duty as employees of the concerned farm, and therefore sought

to vacate the cattle and their owners from the farm premises

where they were found grazing. Nonetheless, given that Sughai

succumbed to his injuries and lost his life, and there is sufficient

evidence, in the form of witness testimony which has lead to the

conviction of Shan Mohammad under Section 304 Part II I.P.C.

and of Mohammadayyar under Section 323 read with Section 34

I.P.C.

10. This Court is conscious of the judgments rendered in,

Alister Anthony Pareira Vs. State of Maharashtra (2012)

2 SCC 648 and Haripada Das Vs. State of W.B. (1998) 9

SCC 678 wherein the Hon'ble Apex Court observed as under:-

Alister Anthony Pareira (Supra)

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"There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

Haripada Das (Supra)

"...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone..."

11. In light of the limited prayer made on behalf of the

appellant, and keeping in mind the aforementioned precedent

laws, the present petition is partly allowed. Accordingly, while

maintaining the appellants' convictions i.e. Appellant No. 3,

Shan Mohammed for the offence under Section 304 Part II I.P.C.

and Appellant No. 1 - Sadeek Khan (qua whom the appeal has

abated) and Appellant No.2 Mohammedyar respectively, for the

offences under Sections 325/34 and 323/34 I.P.C., the sentence

awarded to them is reduced to the period already undergone by

them. Appellant no. 2-Mohammadyar and Appellant No.3-Shan

Mohammed are on bail, in pursuance of the orders dated

26.08.1993 & 27.09.1993 passed by this Hon'ble Court in S.B.